Original Public Meaning Originalism vs. The "Common Law Living Constitution"

The “Great Debate” in constitutional law, one that has raged for over 200 years, is this: Should courts interpret the Constitution’s text as it would have been understood by ordinary citizens alive at the time the text was ratified? Or should judges interpret the Constitution as a common law, “living” organism, one meant to evolve to suit the changing needs and values of contemporary American society? 

Originalists believe that if the Constitution must evolve to keep pace with our constantly changing world, we should seek this change through the legitimate amendment process of Article V. Simply put: amendments should come from the people, not the Supreme Court.

However, proponents of a Living Constitution believe that the formal amendment process is too “cumbersome” to keep the Constitution current, and that necessity therefore requires the Supreme Court to preside over the "evolution" of the Constitution from the Bench. For example, if the written Commerce Clause does not give Congress sufficient power to deal with a global economy and contemporary problems such as the health care crisis, then it is the duty of the Court to recognize that the Constitution has evolved to meet our ever-changing political needs. After all, why should contemporary Americans be saddled with the views and philosophies of long-dead white males who had no understanding of the needs and values of America in 2018?

Here is what I would like you all to do for our zoom session. 

Think about the readings and your personal understanding of what it means to have a written Constitution, a Constitution that is the supreme law of the land and invalidates all federal and state laws that are inconsistent with the Constitution, and compile several lists as follows:

1. a list of at least 3 reasons why you support an originalist interpretation of the Constitution 

2.  a list of at least 3 reasons why you support a common law "living" interpretation of the Constitution

3. a list of three arguments against originalism

4. a list of three arguments against common law constitutionalism

For Tomorrow's Zoom Session (Wednesday August 26)

 

For our Zoom session this Wednesday on Marbury and McCardle, I would like you to focus on the following blog posts:

Marbury v. Madison: Takeaways

Marbury and the Judiciary Act of 1789

Can the Supreme Court Violate the Constitution?

Ex Parte McCardle

McCardle: A Few Notes

What are some of the issues that you feel strongly about? 

 

If the Court has the power of judicial review, should this be an unchecked power? If not, how does the Constitution protect us from judicial supremacy and government by the judiciary?

I said most of what I want to say in the recorded classes. I want to hear you think?

As they say in Hamilton, "see you on the other side" of the new normal (i.e. on Zoom).

Zoom Zoom Zoom

 Just a reminder:

We will have 3 zoom sessions this week:

1. Tuesday August 25 at 5 to 6 PM (organizational meeting)
2. Wednesday August 26 at 5 to 6 PM (Marbury/McCardle)
3. Thursday August 27 at 5 to 6 PM (Great Debate: Originalism vs The Living Constitution)

Just go to the Canvas Zoom page for this course and join the recurring meeting.

 I sent you an email last week with instructions.

Pro Tip

 Welcome Fall 2020 Con Law I students! If you are looking for something that is supposed to be on this blog, just scroll down until you find it. I have already posted a number of substantive posts for the first week's assigned readings. Just scroll down until you find them!

Assignments for First Week (remotely and asynchronously)

Here are the assignments for the first week of classes from August 17-23 (to be taught remotely and asynchronously):

1. Casebook p. 1-37 (skim p. 1-24 as background reading). 
2. Casebook p. 37-42

The casebook is: Varat & Amar, Constitutional Law (15th Edition)(Foundation Press 2017)

I will also post links to video recordings of my teaching these initial assignments. Once we get into the regular part of the Fall semester (Zoom discussion/Q&A sessions starting the second week of class), we can talk about what we learned during this first week. 

I will be posting a full syllabus soon, but it still needs quite a bit more work.  


 

Con Law I Distance Plan

 
I will be teaching Con Law I remotely during Fall 2020. Here is my plan:

1. I will teach and record the entire class to an empty classroom this summer. The recorded class videos will be linked on this class blog (and probably on Canvas, although I don't use Canvas for much).
   
2. I will have regular zoom discussion sessions and Q & A sessions to supplement the recorded classes. I plan to schedule at least 18 hours (1080 minutes) of Zoom sessions. My plan is to have zoom sessions every week during our scheduled class hours (probably twice a week most weeks for 60 to 75 minutes per session).
3. I will assign a number of oral arguments of landmark SCOTUS cases. This will enable you to listen to excellent lawyers arguing some of the very cases we are reading. You will learn both substantive con law and oral advocacy skills from these oral arguments. Some of our Zoom sessions will focus on a discussion of the oral arguments I have assigned.
4. I have been teaching on line for more than 20 years via this course blogs. It is the primary way I communicate with my students outside of class. I post assignments and announcements here. I post many substantive posts here (several posts for each class) and I also will link to recorded lectures, articles, news reports, and SCOTUS oral arguments. I encourage you to participate by posting comments or questions to the blog posts.
5. I will have telephone office hours and I encourage y'all to call me to discuss con law or to ask questions.
6. I don't use Canvas for very much.  So please consider this blog your primary on line source for information about this course. Check it regularly for new information and substantive posts. Once a day keeps your up to date!

Con Law I--First Recorded Class

I am posting a link below to Recording number 1. It is just my introduction to the course. One thing has changed from what I said there--I have decided not to assign the Barnett & Blackmun supplemental book. It is good, but I don't want to overdue the assigned materials.

Here is the Link:

Class 1

https://unl.box.com/s/2j5dfi39cwlavdc0rs386jk3dqfgukzq

 

Fall 2020 Con Law I Class

Greetings. I just posted a link to this blog on Canvas, so I thought I would welcome you here.

The Fall 2020 Covid-version of Con Law I will be a distance class. I am spending most of the summer teaching the class to an empty classroom in Room 113 in order to record the classes for you to view at home. We will also have zoom discussion sessions. It has been a lot of work, but I have enjoyed it because I love teaching this course.

These video recordings will be posted both here and (I believe) on Canvas during the semester. But not until early August.

Be aware that I don't use Canvas for very much. I believe Con Law can't be learned with modules, flash cards, and little exercises and quizzes. It requires deep and thoughtful analysis of Supreme Court opinions dealing with complex issues.

I use this blog to communicate with students enrolled in this course. Please check the Con Law course blog regularly (a quick check once a day will keep you up to date).

Announcements will be posted here. My syllabus will be here. Links to oral arguments we will be listening to will be here. And many helpful substantive posts about cases we are reading and issues we are analyzing will be here.

I miss the in-person classroom with everybody in one place learning about our Constitution. I am trying to come as close to that experience for you with recorded classes and zoom discussions.

We will learn a lot about our great Written Constitution this year. And I can't wait to get going!

Cheers,

Rick Duncan